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By PORAC | October 2, 2010 | Posted in PORAC LDF News

Hey, It’s Better Than a Kick in the Head

Posted by Lauro paredes

On August 24, 2008, Correctional Officer Jorge Garcia was working in the San Joaquin County Jail. On that shift, Garcia was assigned as a “Rover,” assisting the other correctional officers wherever he was needed most. Suddenly, he received a radio transmission from an officer in Unit 4, requesting assistance.

Unit 4 is a very tense and dangerous unit because it is where the County places the inmates that have had previous disciplinary problems in the jail. Inmates in that unit also frequently have communicable diseases or are known gang members or child molesters. The inmates in Unit 4 receive special administrative segregation and monitoring because of the greater risk they present to the security of themselves and/or the jail personnel.

On this particular night, one of the correctional officers in Unit 4 had an altercation with an inmate who was being disruptive and not complying with commands. There were approximately 120 inmates in the Unit at the time, and the other officer placed them in lockdown so she could handle the situation with the unruly inmate. While removing the inmate to the Intake area of Unit 4, the inmate began resisting and trying to incite a riot with the other inmates. In the Intake area, the inmate attempted to tackle one of the officers and was taken to the ground where he continued to fight and resist. The officers called Garcia for assistance, but used a code that indicated it was not an emergency. Nevertheless, Garcia ran to the area while trying to contact the officers by radio, to no avail. One of the other officer’s radios began emitting a “man down” signal.

When Garcia arrived at the Intake area of Unit 4, he first verified that there were no unrestrained inmates on the other side of the door, then ran into the room. His heart was pounding and adrenaline was flowing because of the “man down” signal and his inability to reach the other officers on the radio. As he entered the room, the other two officers had the inmate on the ground, where the inmate continued to flail and attempt to free himself. Garcia had a limited view of the inmate’s body. His initial intent was to grab the inmate’s shoulder to help hold him down. However, at that moment, the inmate twisted his head to the left in an effort to bite one of the officer’s hands/arm. In response, Garcia deployed a single, swift kick to the inmate’s head, thus preventing the bite. Ultimately, the inmate was successfully removed from the Unit and placed in administrative segregation.

The other officers present felt Garcia’s action was unnecessary to help restrain the inmate. However, their respective points of view prevented them from seeing what Garcia could: the inmate’s attempt to bite the other officer. One of the other officers also felt that there was “no way” the inmate could have bitten him given his position on the inmate’s body. A fourth officer, who also arrived on scene, observed Garcia’s kick and felt he was in complete control and not in a rage; Garcia did not have a history of using force on inmates.

Because of this single incident, Garcia was terminated for use of excessive force and dishonesty during the investigation. The Department did not believe Garcia’s account that the inmate was attempting to bite the other officer.

In its rush to condemn Officer Garcia for kicking an inmate in the head, the Department made several missteps, including failure to provide a full Skelly packet, a serious breach of Officer Garcia’s POBR rights.

The Department also did two reenactments of the incident, but only provided Garcia with photos from one of them. The two reenactments showed radically different scenarios. When Mr. Lauro Paredes, from Goyette & Associates, Inc., cross-examined the Department’s witnesses, they admitted that there had been two different reenactments, neither of which Garcia was invited to participate in. The Department should have been upfront in providing all of the photos from both reenactments so Garcia could fully prepare his defense. The Arbitrator sustained a finding against the Department for this violation.

On behalf of Officer Garcia, special-use-of-force expert Ray Arquilla testified that Garcia’s actions were justified. He explained that an inmate’s bite could be deadly due to the high rate of serious and infectious diseases in the inmate population. The Department’s own witnesses conceded that inmate bites were frequent. One of their witnesses also admitted that he had been bitten on a previous occasion and described, on cross-examination by Mr. Paredes, the extent of the health precautions the Department had him undertake.

Following the hearing, the Arbitrator found that Garcia was honest during the investigation and that the Department had violated its Skelly responsibilities. The Arbitrator ordered Garcia reinstated with full seniority and significant backpay. However, before he could pull on his boots and get back to work, Officer Garcia learned that his ordeal was not yet over.

In spite of the Association’s Memorandum of Understanding, which clearly dictated that arbitration was binding, the Department refused to honor the Arbitrator’s decision. Unwilling to concede that it had over-reacted in Officer Garcia’s case, the Department filed a Writ in the San Joaquin County Superior Court seeking to overturn the Arbitrator’s decision.

Mr. Paredes and the team at Goyette & Associates defended against the Writ, arguing that the Arbitrator had made a well-reasoned decision based upon facts in the record. In a lengthy decision, the Superior Court held that the County must honor the Arbitrator’s decision. Garcia is happy that he has finally been able to put this long and hard-fought battle behind him and return to work at the Department.